Discipline tribunals are increasingly asked to make nuanced legal distinctions. An example is Bujacz v. Ontario College of Teachers, 2026 ONSC 1265, where a discipline tribunal imposed mandatory revocation of the certificate of registration of a teacher for, among other things, sending sexual messages to one of the teacher’s former students. At the time the messages were sent, the student was 17 years old and in high school.
The first issue was whether the messages were “sexual” in nature. The Court upheld the tribunal’s finding that, applying an objective “reasonable observer” test, the messages were of a sexual nature even though they were not overtly or explicitly sexual. The Court said:
Among other circumstances relevant to whether the messages were of a sexual nature, the Panel discussed the age of the appellant and Student 1 at the time, the frequency of the messages and the times they were sent, the use of a private social media platform, the informal nature of the messages, the fact that they did not relate to school work – they were personal in nature, and that they contained sexual innuendo and suggestions of Student 1’s maturity.
The second issue was whether their recipient was a “student”. The teacher had taught her when she was in elementary school. The Court accepted the definition in the profession-specific legislation of “student” which includes, for the purposes of the sexual abuse provisions, anyone enrolled in school who is under 18 years of age.
The third issue was whether the messages constituted sexual abuse (which would result in mandatory revocation) or sexual misconduct (which would not). The Court accepted the tribunal’s interpretation that sexual abuse involved comments or behaviour directed toward a particular student or students, while sexual misconduct could include sexual behaviour or comments of a more generalized nature that was not directed at specific individuals. Relatedly, the Court accepted that the tribunal could reject an opinion expressed by a regulator’s expert witness during cross-examination that the messages, while below professional standards, did not constitute sexual abuse.
The fourth issue was whether mandatory revocation breached the teacher’s freedom of expression under the Canadian Charter of Rights and Freedoms. Several court decisions have upheld mandatory revocation for health practitioners for certain types of sexual touching of patients. There was no touching alleged here. The Court accepted the tribunal’s conclusion that, while the mandatory revocation provision infringed on the teacher’s right to freedom of expression, the infringement was justified by virtue of section 1 of the Charter. Protecting the safety of vulnerable students was a pressing and substantial goal. Given the type of harm that can result from such conduct (which was supported by expert evidence), mandatory revocation was a proportional measure. The teacher’s messages were not the type of “expression” that warranted strong protection. Moreover, the mandatory revocation provision applied only to sexual comments and not to other types of expression.
The fifth issue was subtle. The teacher argued that the finding that the comments were of a sexual nature should have been subject to a Doré analysis. Doré stands for the proposition that when a regulator exercises discretion, it needs to balance any applicable Charter values. The Court had difficulty characterizing the finding that the comments were of a sexual nature as a discretionary decision. However, even if it was a discretionary decision, the Court found that Charter analysis carried out by the tribunal related to the validity of the mandatory revocation provision was adequate.
It is a lot to ask lay tribunals to make these types of distinctions, but this is the current state of administrative adjudication.
